BAR ASSOCIATION OF NASSAU COUNTY
COMMITTEE ON PROFESSIONAL ETHICS
Opinion No. 1996-14
(Inquiry No. )
Factors that a lawyer may properly consider in deciding whether to accept or reject a case.
In deciding whether to accept or reject a case, a lawyer may properly consider — subject to the restrictions of DR 5-101(A) — factors such as (a) the opportunity to work with a specific expert, (b) extending professional courtesy or consideration to a family member, friend or colleague, and (c) the ability to become known and networked in a community in which the firm is not otherwise established.
The inquiring attorney and his law firm represent plaintiffs in medical malpractice cases. The firm handles the cases on the customary sliding scale contingent fee. As a general practice, the firm advances expenses of medical malpractice litigation a d treats the advances as loans to the clients.
The inquiring attorney wants to know whether a law firm may properly consider certain specified factors in deciding whether to accept employment particular cases. The inquiring attorney asks us to assume that his law firm has determined that the cases in question have merit on liability, but that they have relatively limited or low economic or non-economic value.
May a lawyer or law firm consider any or all of the following factors in deciding whether to investigate or proceed with the case: (a) the opportunity to work with a specific expert; (b) extending professional courtesy or consideration to a family member, friend or colleague; or (e) the ability to become known and networked in a community in which the firm is not otherwise established?
Yes, subject to the terms of DR 5-101(A).
No section of the Code of Professional Responsibility expressly addresses the factors that a lawyer or law firm may consider in deciding whether to accept a case, but many of the Ethical Considerations in the Code provide guidance relevant to the inquiry.
A lawyer is not obligated to take all prospective clients but is encouraged not to lightly decline clients. EC 2-26 provides:
EC 2-26 A lawyer is under no obligation to act as advisor or advocate for every person who may wish to become a client; but in furtherance of the objective of the bar to make legal services fully available, a lawyer should not lightly decline proffered employment. The fulfillment of this objection requires acceptance by a lawyer of a fair share of tendered employment which may be unattractive both to the lawyer and the bar generally.
The Code also suggests that attorneys should not decline unpopular cases. EC 2-27 provides:
EC 2-27 History is replete with instances of distinguished sacrificial services by lawyers who have represented unpopular clients and causes. Regardless of personal feelings, a lawyer should not decline representation because a client or a cause is unpopular or community reaction is adverse. A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.
Nevertheless, an attorney should not accept cases where the attorney cannot provide competent service or where the purpose of the action is to harass or maliciously injure another party. EC 2-30 provides:
EC 2-30 Employment should not be accepted by a lawyer who is unable to render competent service or who knows or it is obvious that the person seeking to employ the lawyer desires to institute or maintain an action merely for the purpose of harassing or maliciously injuring another. Likewise, a lawyer should decline employment if the intensity of personal feelings, as distinguished from a community attitude, may impair effective representation of a prospective client. If a lawyer knows that a client has previously obtained counsel, the lawyer should not accept employment in the matter unless the other counsel approves or withdraws, or the client terminates the prior employment.
Moreover, once a lawyer agrees to accept a matter, the lawyer’s professional judgment should be exercised solely for the client’s benefit. EC 5-1 provides:
EC 5-1 The professional judgment of a lawyer should be exercised, within the bounds of the law, solely for the benefit of the client and free of compromising influences and loyalties. Neither the lawyer’s personal interests, the interests of other clients, nor the desires of third persons should be permitted to dilute the lawyer’s loyalty to the client.
Accordingly, where an attorney’s personal interests or desires will (or reasonably may) adversely affect a client’s interests, a lawyer should not accept the proffered employment. EC 5-2 provides:
EC 5-2 A lawyer should not accept or offer employment if the lawyer’s personal interests or desires will, or there is reasonable probability that they will, affect adversely the advice to be given or services to be rendered the prospective client….
If a lawyer’s own financial, business, property or personal interests will be or reasonably may be adversely affected, then a lawyer shall not accept employment without consent of the client after full disclosure. DR 5-101(A) provides:
DR 5-101(A) Except with the consent of the client after full disclosure, a lawyer shall not accept employment if the exercise of professional judgment on behalf of the client will be or reasonably may be affected by the lawyer’s own financial, business, property, or personal interests.
DR 5-101(A) may well apply if a lawyer believes that a case has relatively low economic or non-economic value, as the inquiring attorney asks us to assume. If the attorney accepts the case primarily because it offers “the ability to become known or networked in a community in which the firm is not otherwise established” (to use the exact language of the inquiry), this may skew the attorney’s exercise of professional judgment on the client’s behalf. For example, if the case does not appear to be achieving the law firm’s publicity or networking objectives, then the firm may be tempted to provide less than zealous representation, or may urge the client to settle too quickly. Conversely, if the case turns out to have substantial publicity value, the law firm may push the client to go to trial rather than accept a favorable settlement offer.
Thus, a law firm may accept a case to gain exposure or establish a network in a new community, but if the inquiring attorney believes that the law firm’s own goals will adversely affect (or reasonably may adversely affect) the lawyer’s professional judgment on behalf of the client, then the lawyer may not accept the case unless the client consents after full disclosure, as DR 5-101(A) demands.
Other Ethical Considerations encourage full disclosure to the client after a case has been accepted. For example, EC 7-8 and EC 9-2 provide:
EC 7-8 A lawyer should exert best efforts to insure that decisions of the client are made only after the client has been informed of relevant considerations. A lawyer ought to initiate this decision-making process if the client does not do so. Advice of a lawyer to the client need not be confined to purely legal considerations. A lawyer should advise the client of the possible effect of each legal alternative. A lawyer should bring to bear upon this decision-making process the fullness of his or her experience as well as the lawyer’s objective viewpoint. In assisting the client to reach a proper decision, it is often desirable for a lawyer to point out those factors which may lead to a decision that is normally just as well as legally permissible. The lawyer may emphasize the possibility of harsh consequences that might result from assertion of legally permissible positions.
EC 9-2 Public confidence in law and lawyers may be eroded by irresponsible or improper conduct of a lawyer. On occasion, ethical conduct of a lawyer may appear to non-lawyers to be unethical. In order to avoid misunderstandings and hence to maintain confidence, a lawyer should fully and promptly inform the client of material developments in the matters being handled for the client.
In sum, a review of the Disciplinary Rules and Ethical Considerations discloses nothing that would prevent the inquiring attorney or his law firm from considering or accepting a case based upon the existence of factors such as (a) the opportunist to work with a specific expert, (b) extending professional courtesy or consideration to a family member, friend or colleague, and (c) the ability to become known and networked in a, community in which the firm is not otherwise established.
However, this Committee offers one particular caution. The inquiring attorney has told us that his law firm generally advances the expenses of medical malpractice litigation and treats the advances as loans to the firm’s clients. The inquiring attorney has also asked us to assume that the cases in question have relatively limited or low economic or non-economic value. This combination poses a potential problem. Under DR 5-103(B), unless a client is indigent, an attorney may not advance or guarantee the expenses of litigation unless “the client remains ultimately liable for such expenses.” If the inquiring attorney’s law firm accepted a medical malpractice case with the expectation that the recovery would not be sufficient to cover the expenses of the litigation, and if the client is not indigent, then DR 5-103(B) comes into play. It would require the law firm to make genuine efforts to obtain repayment of the “loan” that the firm has made to the client to cover the expenses of the litigation.
This scenario creates a potential problem. If the case is expected to produce little or no monetary recovery, then the case may be a losing economic proposition for the client — the litigation expenses may be greater than the monetary recovery. If the law firm is using the case to promote its own reputation or to develop a network in a community where the firm is not yet established, the firm may in effect be promoting itself at the expense of the client. This again brings DR 5-101(A) into play, because the inquiring attorney may be putting his law firm’s interests ahead of his client’s interests. A client has the right to pursue a case that may be a losing proposition, but the client his the right to know that the case may be a losing proposition. Thus, the inquiring attorney’s firm may not accept a case of limited economic or non-economic value primarily to promote the firm’s own reputation — or primarily to promote other interests of the law firm — except with the client’s consent after full disclosure of the firm’s evaluation of the case and the firm’s reasons for taking the case.
In conclusion, the Code of Professional Responsibility does not prohibit the inquiring attorney or his firm from considering the factors enumerated in the inquiry when deciding whether or not to accept a case. However, if the law firm wishes to accept a case mainly to serve its own interests at the client’s expense, then DR 5-101(A) gives the client the right to know that before the client decides whether to retain the law firm.
(Approved by the Executive Subcommittee on 10/22/96; approved by the Full Committee on 10/30/96)